Terms of Use

Tangible Play, Inc.

Effective Date: September 18, 2018

TERMS OF USE

These Terms of Use (“Terms”) govern your access to and use of the Tangible Play Website (as defined below), Apps (as defined below) and the Products (as defined below). In addition, these Terms govern all purchases made through the Services (as defined below). In addition to these Terms, your access to and use of the Services are governed by the Tangible Play Privacy Policy, which can be found at https://www.playosmo.com/en/privacy-policy/ (the “Privacy Policy”), and which is incorporated into these Terms by reference. Please read them carefully.

These Terms constitute a binding agreement between you and Tangible Play, Inc. (“Tangible Play,” “we” or “us”). BY ACCESSING OR USING THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND YOU AGREE TO BE BOUND BY THEM. IF YOU DO NOT ACCEPT THESE TERMS, YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICES.

Tangible Play reserves the right to revise these Terms at any time, at its sole discretion and with or without notice, by posting an updated version to https://www.playosmo.com/en/terms/. You should visit this page periodically to review the most current Terms. By continuing to access or use the Services after updated terms have been posted, you agree to be bound by the updated Terms. Certain portions of the Services or Products may have additional terms and conditions and may require you to agree to such terms and conditions.

DEFINITIONS

“App(s)” means the Tangible Play iPad, iPhone and/or Android application, available for download from Apple, Inc. or Amazon.com, as appropriate, and any other software application made by Tangible Play for use on a mobile device or tablet computer.

“Content” means all content contained in the Website or the Apps, including all text, images, audio content, videos, designs, graphics, information, logos, downloadable content, software, and any other content contained therein and all patents, copyrights, trademarks, service marks, intellectual property and/or other proprietary information of Tangible Play.

“Product(s)” means any products purchased from Tangible Play or through the Tangible Play Website.

“Services” means the all services provided by Tangible Play through the Website or the Apps and the Products.

“Tangible Play Website” or “Website” means any websites, web pages, and any subpages under Tangible Play’s control, whether partial or otherwise, including www.tangibleplay.com and any subpages.

“User,” you,” and “your,” means you and all individuals and/or entities on whose behalf you are accessing or using the Services for any reason.

ELIGIBILITY

By accessing or using the Services, you represent and warrant to Tangible Play that (i) you are of legal age to form a binding contract, or, if you are a minor, you have your parent’s permission to access or use the Services, and your parent has read and agrees to these Terms on your behalf; (ii) all information you provide is accurate, current and complete; (iii) you will maintain the accuracy and completeness of such information; and (iv) if you are accepting these on behalf of an institution, school, company or other legal entity, you have the authority to bind that institution, school, company or legal entity to these Terms. You also certify that you are legally permitted to use and access the Services and take full responsibility for the selection and use of and access to the Services. These Terms are void where prohibited by law, and the right to access the Services is revoked in such jurisdictions.

CHILDREN AND OUR SERVICES

While our Products are aimed to be used by children of varying ages, some of our Services (including the Website and any Accounts, as defined below) are intended to be used only by parents, legal guardians and/or teachers over the age of 18.

In order to access certain features of the Services and to post any User Content (as defined below) on or through the Services, a parent, legal guardian or teacher must register to create an account (“Account”) on the Website. By creating an Account, you represent and warrant that you are at least 18 years of age. Tangible Play reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. It is your responsibility not to disclose your Account credentials to anyone. You will immediately notify Tangible Play of any unauthorized use of your Account.

In accordance with Federal Children's Online Privacy Protection Act of 1998 (COPPA), we will never knowingly solicit, nor will we accept, personally identifiable information from users known to be under 13 years of age.

If a school and/or teacher (the “Educational Institution”) with students that are under 18 years of age uses our Services and provides us with personally identifiable information about its students in order to create user profiles for each of its students, such teacher must first obtain written consent from each student’s parent and/or legal guardian to submit such personally identifiable information to us and use such personally identifiable information in the Services. We use that information to provide the Services to the Educational Institution, consistent with our Privacy Policy. Each Educational Institution acknowledges and agrees that it will not use the Services in any way to collect personally identifiable information from users known to be under 13 years of age.

Each Educational Institution shall also indemnify and hold Tangible Play harmless from any and all claims that arise from (i) failure to use our Services as intended or (ii) failure to comply with the Child Online Privacy Protection Act of 1998 (COPPA), the Family Educational Rights and Privacy Act (FERPA) or any applicable law.

USAGE

You agree and warrant that you will not use the Services in a manner that is illegal or otherwise inconsistent with the Terms. In addition, you will not use the Services in a manner that Tangible Play, in its sole discretion, deems objectionable. Tangible Play reserves the right to restrict, suspend, or terminate your access to the Services at any time without notice for any reason.

You agree that you will only access the Services through the Website or the Apps.

You agree not to do any of the following:

attempt to decipher, decompile, disassemble or reverse engineer or otherwise hack the Services or any software used to provide the Services;

attempt to breach any security or authentication measures of the Services;

avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Tangible Play or any other third party to protect the Services or the Content;

use the Services or the Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;

take any actions that damage or tamper with the Services;

interfere or attempt to interfere with other users’ use of the Services;

impersonate or misrepresent your affiliation with any person;

violate any applicable law of regulation; or

encourage or enable any other individual to do any of the foregoing.

Tangible Play will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Tangible Play may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Tangible Play has no obligation to monitor your access to or use of the Services or the Content, but has the right to do so for the purpose of operating the Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Tangible Play reserves the right, at any time and without prior notice, to remove or disable access to the Services or any Content, that Tangible Play, in its sole discretion, considers to be in violation of these Terms or otherwise harmful to the Services.

LIMITED LICENSE

Subject to your compliance with these Terms, Tangible Play grants you a limited, non-exclusive, non-transferable license to access and use the Services solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.

Subject to your compliance with these Terms, Tangible Play grants you a limited non-exclusive, non-transferable license to download and install a copy of the Apps on a single mobile device or tablet computer that you own or control and run such copy of the Apps solely for your own personal use. Furthermore, with respect to any App downloaded from the Apple, Inc. App Store, you will only use such App (i) on an Apple-branded product that runs the iOS (operating system software provided by Apple) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Tangible Play reserves all rights in the Apps not expressly granted to you by these Terms.

You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Website, the Apps, the Services or the Content except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Tangible Play or its licensors, except for the licenses and rights expressly granted in these.

REVIEWS, COMMENTS, COMMUNICATIONS AND OTHER CONTENT

Users of the Website may post reviews, comments and other content (“User Content”) to the Website, so long as the User Content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam." You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other User Content. Material which violates or infringes upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, indecent or otherwise objectionable, which encourages conduct constituting a criminal offense, gives rise to civil liability or otherwise violates any law will not be posted on or transmitted via the Website. We will not permit any conduct that, in Tangible Play’s judgment, restricts or inhibits others from using or enjoying the Website. Tangible Play reserves the right (but not the obligation) to remove or edit any such User Content, but does not regularly review posted User Content. Tangible Play has no ownership rights in any User Content that you may post and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit such User Content.

If you do post User Content you grant us a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such User Content throughout the world in any media. You grant us and any of our sublicensees the right to use the name that you submit in connection with such User Content, if we or any of our sublicensees choose. You represent and warrant that you own or otherwise control all of the rights to the User Content that you post; that the User Content is accurate and that use of the User Content you supply does not violate this policy and will not cause injury to any person or entity. Tangible Play has the right but not the obligation to monitor and edit or remove any activity or User Content. Tangible Play takes no responsibility and assumes no liability for any User Content posted by you or any third party.

While under no obligation to do so, we do attempt to respond to questions and comments submitted to us via e-mail that are not published on the Website. Although we value our Users’ feedback, please do not submit any proprietary information, suggestions or materials via e-mail or our website. We are not obligated to compensate you for such submissions, which will become the property of Tangible Play. By submitting such materials, you release your proprietary, intellectual property and all other rights.

PURCHASES THROUGH WEBSITE OR THE APPS

Delivery. Tangible Play shall deliver the Tangible Play Products once purchased to the place of delivery designated by you. If you choose to request any type of express or expedited courier or shipping services, you shall be responsible for all additional shipping fees. International orders may also involve customs, import duties or other charges which vary from country to country. You are solely responsible for any such additional charges. In addition, it is your responsibility to check with your local customs office to verify whether the country to which you are shipping permits the shipment of Products to you.

Pricing. Except where otherwise noted, the list price displayed for any Product represents the full price, less any applicable sales or tax, of the product, less any applicable sales or other taxes or other charges. Despite our best efforts, a small number of items in our catalog may be mispriced and, in the event of a mispricing, Tangible Play reserves the right to charge the correct price.

Refunds and Exchanges. Tangible Play does not take title to returned or refunded Products until the Products arrive at the Tangible Play headquarters. You may return any Tangible Play Product within thirty (30) days of purchase if such Product is unopened, unused, and in its original condition for a full refund, less any applicable shipping or other charges. If you believe that you have received a faulty or broken Product from Tangible Play, please contact Tangible Play at [email protected]. We will endeavor to exchange the Product for a new one; please note that we must receive your Product within fourteen (14) days of purchase and that the exchange is contingent upon our review and inspection of the Product. If you are returning a Product within the United States, Tangible Play will be solely responsible for all shipping costs for returns and exchanges. If you are returning a Product internationally, please contact Tangible Play at [email protected] before you ship the Product. Please note that with international orders, you are solely responsible for all shipping costs for returns, exchanges, customs and import duties and such costs will be at your expense. Returns beyond the thirty (30) day period may be accepted by Tangible Play in Tangible Play’s sole discretion. We recommend you return the Products using a shipping method that is traceable and insured to protect your shipment.

Affiliations. Tangible Play is not related to or affiliated with Apple, Inc., Google, Inc., or Amazon, Inc.

INTELLECTUAL PROPERTY

The Services are protected under patent, copyright, trademark, and/or other laws of the United States and foreign countries. The Services and all Content are the property of Tangible Play or its licensors. The compilation, collection, arrangement, or assembly of all Content is the exclusive property of Tangible Play and is protected as well. Any code or software code that Tangible Play creates, generates or displays in the Services are also protected and you may not copy or adapt such code.

You may not modify, publish, transmit, create derivative works, or in any way exploit any of the Content of the Website. Except as otherwise expressly permitted under copyright law, no copying, redistribution, publication or commercial exploitation of downloaded material from the Website is permitted without express written permission from Tangible Play and any other copyright owner.

If any copying, redistribution or publication of copyrighted material is expressly permitted, no changes in or deletion of author attribution, trademark, legend or copyright notice shall be made. You acknowledge that you do not acquire any ownership rights by downloading copyrighted material. You shall be liable for any damages resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from any uploading, downloading or submission. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Tangible Play without Tangible Play’s express written consent. You may not use any meta tags or any other "hidden text" utilizing Tangible Play's name or trademarks without the express written consent of Tangible Play.

Apple, the Apple logo, Apple Store, and iPad are trademarks of Apple Inc., registered in the U.S. and other countries. App Store is a service mark of Apple Inc. Amazon, Amazon.com, Amazon Fire are trademarks of Amazon, Inc., registered in the US and other countries,

DISCLAIMER OF WARRANTY

TANGIBLE PLAY MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES OR ANY PRODUCT WILL MEET YOUR REQUIREMENTS OR OPERATE OR BE AVIALABLE ON AN UNINTERRUPTED, SECURE OR ERROR-FREE BASIS OR THAT THE SERVICES OR ANY SERVERS USED BY THE SERVICES ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MECHANISMS. IF YOUR USE OF ANY WEBSITE RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA OR ANY OTHER COSTS, YOU ARE SOLELY RESPONSIBLE FOR SUCH COSTS AND TANGIBLE PLAY SHALL NOT BE LIABLE FOR SUCH COSTS. THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. TANGIBLE PLAY MAKES NO REPRESENTATION OR WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE CONTENT ON THE SERVICES OR WITH REGARD TO THE PRODUCTS.

LIMITATION OF LIABILITY

YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE ENTIRE RISK OF USING THE SERVICES REMAINS WITH YOU AND IN NO EVENT SHALL TANGIBLE PLAY BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA, LOST PROFITS, LOST EMPLOYMENT OPPORTUNITY OR BUSINESS INTERRUPTION, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS) RESULTING FROM THE USE OR INABILITY TO USE THE SERVICES OR THE PRODUCTS, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TANGIBLE PLAY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.

IN NO EVENT WILL TANGIBLE PLAY’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR PRODUCTS EXCEED THE AMOUNTS YOU HAVE PAID TO TANGIBLE PLAY FOR USE OF THE SERVICES AND THE AMOUNTS YOU PAID FOR THE PRODUCTS. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TANGIBLE PLAY AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

INDEMNITY

You agree to defend, indemnify, and hold harmless Tangible Play, its affiliates, and their respective officers, directors, employees and agents, from and against any and all claims, suits, proceedings actions, demands, liabilities, damages, losses or expenses, including without limitation reasonable legal and accounting fees, arising out of, resulting from or related to (i) your use of the Services or (ii) your breach of these Terms, including your representations and warranties herein.

TERM AND TERMINATION

These Terms (as updated) will remain in full force and effect for so long as you access or use the Services. Tangible Play reserves the right, at its sole discretion, to pursue all of its legal remedies, including but not limited to suspending, disabling or terminating your access to and ability to use the Services and/or any other services provided to you by Tangible Play, upon any breach by you of these Terms or any impermissible use or access of the Services or for any other reason in the sole discretion of Tangible Play. The provisions of these Terms will remain in effect even after you cease using the Services.

MISCELLANEOUS

Privacy. See the Privacy Policy or information and notices concerning Tangible Play’s collection and use of your personal information.

Third-Party Websites and Content. The Services may contain links to third-party websites, advertisers, services or resources that are not owned or controlled by Tangible Play. Any such links are provided solely as a convenience and not as an endorsement by Tangible Play of the contents on such third-party websites. You acknowledge and agree that Tangible Play is not responsible for the content of linked third-party websites and does not make any representations or warranties regarding the content or accuracy of materials on such third-party website or the security thereof. If you access any linked third-party websites, you do so at your own risk. You agree that Tangible Play shall not be liable for any loss of damage of any sort relating to your dealings with third parties.

Commercial Use. You agree not to make any unauthorized commercial use of the Services.

Access Outside the United States. Tangible Play makes no claims that the Services may be lawfully viewed, downloaded, used or accessed outside of the United States. Access to the Services may not be legal by certain persons or in certain countries. If you access Services, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction.

Governing Law. These Terms are governed by the internal substantive laws of the State of California without regard to its conflict of laws provisions. Jurisdiction for any claims arising under this agreement shall lie exclusively with the state or federal courts within the Northern District of California. If any provision of these Terms is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect.

Additional Terms. If you purchase and/or use the Tangible Play App or any Tangible Play Product, additional terms apply and can be found here. Certain areas of the App may be subject to additional Terms. By using such areas, or any part thereof, you agree to be bound by the additional Terms applicable to such areas.

Waiver. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term. In addition, Tangible Play’s failure to enforce any term of these Terms shall not be deemed as a waiver of such term or otherwise affect Tangible Play’s ability to enforce such term at any point in the future.

Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without Tangible Play’s prior written consent. Any attempt by you to assign or transfer these Terms without such consent will be null and of no effect. Tangible Play may assign or transfer these Terms, in its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Tangible Play and you regarding the Services and the Products, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Tangible Play and you regarding the Services and the Products.

If there are any questions regarding Tangible Play or these Terms, please contact Tangible Play at: